ISSN: 2161-0231 (ONLINE) Confabulation: Connections between Brain Damage, Memory, and Testimony Jerrod Brown, Jeffrey Long-McGie, Pamela Oberoi, Judge Anthony Wartnik, Janina Wresh, Erv Weinkauf, & Gennae Falconer ABSTRACT Confabulation is the act of honestly lying, providing information based on inaccurate memories whether those memories were provoked by questions or arose spontaneously (Moscovitch, 1989). Confabulation is not a function of the disturbed but an action that is part of the human condition. It is not uncommon to create and hold false memories, or even participate in the act of self-deception. Confabulation is simply an act of filling in the holes, creating a semblance of coherency, and improving the narrative (Gallagher, 2003). However, when this simple act enters the criminal justice system as the form of testimony, it can have a perverse long-term corrupting impact on the system resulting in an unintentional loss of liberty, and potentially even death. While there is no way to quantify how often confabulation results in false testimony, it is known that significant groups of individuals with brain damage predisposed to confabulate are regularly in contact with the system as perpetrators, witnesses, bystanders, and victims. www.jghcs.info (2161-0231 ONLINE) JOURNAL OF LAW ENFORCEMENT, VOLUME 3, NUMBER 5 Confabulation is important in the context of the criminal justice system, since the veracity and reliability of testimony is crucial in proceedings geared towards understanding actions and events that have taken place during criminal evaluations and criminal trials. Recently, confabulation has been redefined as a wide range of errors in memory, including distortions, descriptions of false realities, and less dramatic errors such as the description of intrusions, embellishments and elaborations, and the paraphrasing of existing memories (Guerri et al., 2009). Simply, this is not the same thing as lying. Liars are aware of the falsehood of their statements; confabulators are not. This differs from malingering, which is commonly described as a conscious fraudulent production of physical or psychological symptoms to secure something desired (LoPiccolo et al., 1999; Gorman, 1982). In the forensic setting, the individual would fake amnesia, psychotic symptomology, or cognitive difficulty in an effort to escape interrogation or any criminal responsibility (Parwatikar, 1985). A testimonial confession is a critical piece of the conviction process and the most convincing evidence to juries (Kassin & Neumann, 1997). “The introduction of a confession makes other aspects of a trial in court superfluous,” according to Supreme Court Justice William Brennan (Colorado v. Connelly, 1986). While it remains difficult to determine the exact number of individuals who have falsely confessed, in Europe 12% of prisoners allege to have falsely confessed (Gudjonsson, 2003), and a study of Icelandic students with Attention- Deficit and Hyperactivity Disorder (ADHD) identified 261 individuals that had falsely confessed to law enforcement (Gudjonsson et al., 2009). In the United States, “Perske’s List” in its most recently updated form has grown to 75 documented false confessions of individuals with intellectual disability (Perske, 2011), and the Innocence Project reported as of April 17, 2014 that 25% of the 316 exonerated individuals were convicted based on false confessions (http://www.innocenceproject.org). Further, Kassin et al., found that false confessions appeared to have a corrupting effect on the entire criminal investigation resulting in subsequent errors associated with other evidence including; forensic science, eyewitness, and snitch/informant (Kassin et al., 2012). The limitations of testimony, however does not end with the study of the false confession. In fact, testimony from the accused, the eyewitness, or the informant remains integral to the criminal justice system; despite knowing it is less than flawless (Wells & Loftus, 1984). This testimony often constitutes an important piece of information or evidence from which judicial cases are constructed. Differentiating confabulation from deliberate lying may aid in the process of uncovering truth and differentiating valuable from useless information. In order to identify these differences, a basic understanding is intended to create an awareness of the nature and existence of situations that could be more complex than they might first appear. What sometimes appears to be a deliberate lie may be, in reality, unintentional. There is heightened importance in the criminal justice system to identify confabulation by potential witnesses, and defendants themselves, in the form of false confessions. False testimony (false confession, false eyewitness, false informant/cooperating witness) was integral to the conviction of 195 of the 200 individuals that later had their convictions overturned as a result of the work of the Innocence Project (Garrett, 2008). While it is beyond reason to assume that all of the convictions were related to confabulation, thus far, it remains an unanswered question that needs to be explored. In working with psychiatric patients, the presence of confabulation needs to be strongly considered. “Honestly Lying“ - What is Confabulation? Confabulation is the communication of falsely constructed answers and information by an individual recounting something he or she genuinely believes to be the truth (Anastasi, www.jghcs.info (2161-0231 ONLINE) JOURNAL OF LAW ENFORCEMENT, VOLUME 3, NUMBER 5 2006). This phenomenon occurs through the replacement of gaps in memory with imaginary information (Gudjonsson, 1992), causing accounts that lack correspondence to real events. Essentially, a falsification of memories through guessing or the imagining of an event occurs; backfilling and assuming the reality of the imagined event turn into a “final product,“ which is believed to be true by the individual recounting the events (Zannino et al., 2008). In effect, the mind appears to be filling in the missing memory with information that it recognizes should fit, thus explaining the situation and creating a robust memory of the event. Loftus and Palmer evaluated the importance of word choice when questioning a witness (1974). The word “smashed” was substituted for the word “hit” while questioning witnesses of car accident videos. Participants falsely recalled seeing broken glass at a greater rate when the word smashed was used (32%) than when the word hit was used (14%). They also judged the speed of the car to be nearly 7 mph faster when it was “smashed.” This is contrary to liars who are well aware of the falsehood of their statements (Zannino et al., 2008). The range of confabulation can be broad and contain errors in memory, distortions, and descriptions of false realities, as well as less dramatic errors such as the description of intrusions, embellishments, elaborations, and the paraphrasing of existing memories (Guerri et al., 2009). Of course, a general awareness exists about the fallibility of human memory in regards to omission and commission, constituting either the forgetting of details and experiences or leading to the distortion of memories. While amnesia is a well-known and researched condition of memory loss, confabulation constitutes the pathologically exaggerated form of memory distortion and is less well understood (Fotopoulou et al., 2008). Memories of events that have not actually taken place may include vivid contextual and perceptual details, making the accounts appear as though they were true. Often, individuals claim that they are able to relive these memories and, in fact, sometimes act on or respond to their confabulations (Ciaramelli et al., 2007). Examples of this behavior may be seen in the bereavement over the death of an imaginary friend. Other emotional responses may include constructed memories and situations, such as the search for a phone number of an imagined person (Schnider 2003). These types of behaviors suggest confabulators subjectively experience memories as being real, and potentially base actions and decisions on false or distorted experiences (Goel et al., 2003). Causes of Confabulation Many existing theories attempt to explain the reasons and etiology of confabulation. A confusion of events due to a disturbed sense of chronology may cause confabulation when memories from an older time period are judged as currently relevant (Turner & Coltheart, 2010). Spontaneous confabulation, which does not result from an external cue, may be rooted in an impaired ability to filter information. Habits and recurring events may also play a role (Nahum et al., 2009). Another problem may be found in the difficulty to differentiate between incoming new information and information that has been stored in old memories. This old information, regardless of its relevance to the current topic, can often not be suppressed or filtered, and adds to the creation of the story. This process appears to be directly linked to confabulation (Schnider, 2008). Spontaneous confabulation has been linked to an inability to recognize the temporal order of stored information, which results in erroneous recollections of different elements of memories that originally did not correspond (Schnider et al., 1996). In these cases, a persistent outpouring of erroneous memories occurs (Kopelman, 2010). Provoked confabulation depends on the search for information in deficit memory (Schnider et al., 1996), which results in fleeting intrusion errors or distortions that essentially